Public Bill Committee

[Jim Dobbin in the Chair]

The Committee deliberated in private.

Examination of Witness

Adam Pemberton gave evidence.

Jim Dobbin: We will now hear evidence from Victim Support. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill, and that we must stick to the timings in the programme motion that the Committee has agreed. I hope I do not have to interrupt mid-sentence, but I will do so if need be. I call first Gloria De Piero.

Q 164

1 Gloria De Piero (Ashfield): Thank you for joining us. Can I start with the community trigger? Do you think that it needs to be amended so that it can test the vulnerability of a victim when they call?

Adam Pemberton:  Thank you for inviting me to appear before the Committee. Yes, we agree with that. The community trigger is a very good idea in principle, but there are ways in which we think it could go further and make explicit reference to the harm caused to victims in the test. I know clause 96 talks about harm, but we think it could go further than that, to make the most important thing in measuring the test the impact on the victim. We have some suggested wording.
We think that should very much be the focus of the test: the vulnerability of the victims. The number of complaints is important, but this should never be a numbers game. It needs to start from the position, “What has been the impact on the victims? What has been the adequacy of the response?” That should be a key determinant in the trigger being pulled.

Q 2

Gloria De Piero: Baroness Newlove submitted written evidence. I will read a short paragraph to see what you think:
“My only concern with this provision is the requirement for a minimum number of qualifying complaints before an application for a review can be made. This is potentially problematic because it implies that a certain number of incidents are acceptable before any action needs to be taken by the authorities.”
I wondered what you thought of that. Her final point is that she does not think the term “community trigger” works because it does not actually trigger anything. She suggests calling it a “community review” or “alert”. I am interested in your views on Baroness Newlove’s evidence.

Adam Pemberton:  On the first point, I agree. The key test should not be the number of complaints made. The key test should be what impact it has had on the complainant, the victim or victims reporting it. That is more important. The number can feature in there.
There is a wider issue around consistency as well. If different numbers are set in different parts of the country, there is a risk that victims will be treated differently. I think that is an issue. We would agree with Baroness Newlove that numbers should not be the key thing in determining whether it happens.
As for the name, to be honest I am less worried about the name than that it works for victims of antisocial behaviour, that they get some route by which they can access the help they need to address the issues. We know from the many thousands of victims of antisocial behaviour that we have contact with every year that it is a deeply traumatising experience. Being set artificial hoops to jump through does not seem the right way to help them cope and recover.

Q 3

Gloria De Piero: I have a question about the community remedy. Interestingly, the word “remedy” is used and not “restorative justice”, which we might normally use. It is really important. Restorative justice can work; I think everybody here would agree with that. However, it is given a bad name where it is seen as soft justice. Could you maybe give us some advice on behalf of victims of how the community remedy might be tightened up to ensure that it is not soft justice?

Adam Pemberton:  From the point of view of the victims we talk about, the experience is that it is very much centred on the offender. Restorative justice can often be very much around what is right for the offender and whether it is right in sentencing terms.
More widely than the remedy, our view is that restorative justice needs to be balanced. It needs to be about both victim and offender. The main thing that victims tell us is that, although they want some degree of punishment, they are looking for it not to happen again—to them or anyone else. I think they are open to the idea of these approaches if they are right, but it needs to be as much about helping the victim as it is about helping the offender. In the past, it has sometimes gone too far in one direction than the other.

Q 4

Gloria De Piero: Sometimes an apology is given by the perpetrator, or to the police. At what kind of level of incidence of antisocial behaviour would you say something as low or minimal as an apology might work?

Adam Pemberton:  It is very difficult to generalise. Victims of all sorts of crime—that we might consider serious or more minor—can experience restorative justice quite positively. The issue here is about the victim’s willingness to participate and have it explained to them and being fully involved in the process. I do not think you can generalise around crime type for where it is appropriate. It is about the process being done well and being done in a way which is as much about the victim as it is about the offender.

Gloria De Piero: That is very helpful. Thank you.

Q 5

David Rutley: We met with some police and crime commissioners in an earlier session today. They have been given support for local commissioning of services for witnesses and victims. That will provide opportunities for a more competitive approach to getting provisions in place. However, from your perspective, what sort of support do you envisage that the PCCs will need to make sure that that approach will be truly effective?

Adam Pemberton:  The commissioning of support for witnesses of crime will not be passed to PCCs; the witness service, which is the service that we provide, will continue to be commissioned nationally. In terms of services for victims, we are particularly concerned that there should be services there and that every PCC understands the needs of local victims and can make provision for them accordingly.
We certainly think that there is a case for ensuring that there are services on offer in every part of the country. We know through the independent research we recently commissioned that crime type is not a good indicator of a victim’s needs; some individuals can be a victim of quite a serious crime but not need support, whereas others can be victims of what might seem like a relatively minor crime but be quite seriously knocked back by it.
It is very important that PCCs work to understand what the needs of local victims are, but also make sure that as well as there being specialist services around specific crime types or specific issues that may exist locally, there is a generic service for all victims of crime. The best way to find out whether a victim has needs after a crime is to ask them; it is really important that PCCs understand that. We are working as closely as we can with the PCCs across England and Wales to help them build that knowledge base so that when they come to commission they are able to meet needs as effectively as possible.

Q 6

David Rutley: That is interesting. It leads me to my next point: you said clearly that victims’ needs vary. Given the new approach that will be taken, there will be, in theory, opportunities for better integration of local services in support of individual victims. Do you feel optimistic that that will happen?

Adam Pemberton:  Yes. We work closely with other victims’ organisations up and down the country in localities. In respect of antisocial behaviour, in the west midlands we ran a project called BRAVE—Birmingham Residents Antisocial behaviour Victim Empowerment—which is about supporting people who have been subject to persistent antisocial behaviour. We work closely with both statutory partners and local partners—small organisations—to provide help there. I do not think that it is not happening now, but there is the opportunity for PCCs to cement that and make that happen as part of their commissioning activity.

Q 7

David Hanson: On that point, clause 123 says:
“A local policing body may provide or arrange for the provision of…services”.
It does not say “will” or “must”, but “may”. In the new commissioning framework, an amount of money is set centrally. There is currently £66 million going to victim support issues, distributed nationally. If there is a split, with a portion of the money for the witness services, which is done nationally, and a portion of money is devolved to 43 police and crime commissioners, what guarantees have you got that they will do what is currently being done rather than allocate that to additional police community support officers or police officers, or something else?

Adam Pemberton:  There are no guarantees. As the leading charity in this field, we have been trying to work with PCCs—since before they were elected—to seek their commitment to ensuring that victims get the help that they need. During the election campaign, we asked PCCs to sign a series of pledges, and 33 out of the 41 who were elected last November signed up to those promises.

Q 8

David Hanson: That means that eight did not.

Adam Pemberton:  That is true, but we felt that 33 was quite a positive result. We need to keep working on this, and both Victim Support and other victim service agencies are working closely with PCCs to explain why it is important that they provide these services. It is a risk and we are going to do all we can between now and commissioning coming in to ensure that they see the importance of giving victims the help they need, so there is help there once it is being delivered locally.

Q 9

David Hanson: The simple point is that changing one word in the clause, approved by this Committee, would mean they would have to. Changing “may” to “must” or “may” to “will” would mean they would have to. Would you welcome that or not?

Adam Pemberton:  In support of victims and witnesses, yes, I think we would. I think it will make it absolutely clear. From the experience of our managers on the ground, virtually all PCCs think this is important—even the eight who, for complicated reasons, did not sign.

Q 10

David Hanson: That is before the comprehensive spending review.

Adam Pemberton:  That is true.

Q 11

David Hanson: Are you clear at Victim Support what the total bag of money is that is being kept centrally by the Ministry of Justice and other Departments, and what is potentially going to be devolved for distribution by PCCs?

Adam Pemberton:  The Minister for Victims wrote to PCCs about three weeks ago, I think on 29 May, setting out the latest position. The short answer is no, the pot is not yet fully confirmed. I believe indicative budgets will be given to PCCs this October, but they will not have finalised budgets for their share of that pot—on which they can then plan for an 18-month period—until April next year. The total size of the pot and how it is split between the PCCs is not yet fixed.

Q 12

David Hanson: Do you think anybody can provide victim or witnesses services locally? Should there be minimum standards? Should there be some quality check? Can I set myself up as a victims support person and bid for this money from PCCs next year?

Adam Pemberton:  You could. When victims are asked what they want from a supporter agency, what they are looking for—as we did in this piece of independent research—are three things primarily. One was an organisation that can keep personal information safe, so data security. Others were the professionalism and expertise of the people providing the services.
That is what victims say they are looking for from an organisation. Again, I am hopeful that PCCs will recognise that those are the priorities and will be looking to commission people who can meet those requirements.

Q 13

David Hanson: Should there be a quality check at the moment? Clause 123 says,
“A local policing body…under this section…may make grants in connection with the arrangements.”
It does not say to whom, where or how; it can do what it wants. Should there be some quality control of the service? Is it effectively for the PCC locally to determine how much to give as a grant to a service, whoever they grant that service to and on whatever conditions—be it price, quality or whatever?

Adam Pemberton:  You are working with people who have been through potentially very traumatic experiences, who need to be worked with sensitively and caringly in a professional and supportive environment. I therefore think it is important that there is a quality threshold there. I would hope that all PCCs would look for some sort of quality mark or test as part of commissioning services for victims, and would not commission anyone who could not meet that standard.

Q 14

David Hanson: But at the moment the Bill does not allow a quality threshold; it simply says “may”. My challenge to you, and us, is that if we are to have this, is that something we should consider? I am quite relaxed about it but you are the people who are currently providing services and are going to have to face a competitive tender with whoever wants to provide that service.

Adam Pemberton:  As I said, a quality service is very important. If the Committee wanted to endorse that and say that a clear quality standard has to be met, that would be welcome. That would be welcomed by victims. It is important that victims of crime are looking for a quality service and that is what they deserve.

Q 15

Tracey Crouch: We went straight into the individual clauses. I am interested to know your views of the Bill overall.

Adam Pemberton:  I think introducing the Bill is a very welcome move. Our chief executive gave evidence earlier in the year—I think in January—and it has moved on from then. Anything that makes the antisocial behaviour regime more responsive to victims is a good thing.
There is an issue around antisocial behaviour that is non-criminal, or that does not pass the criminal test. That can still be very traumatic for victims of crime, but, under current arrangements, they do not get referred to Victim Support unless they contact us. They are not captured in the new draft code of practice for victims of crime, for example. So there is an issue around non-criminal ASB and how support is given, but in general the Bill is very positive and a step in the right direction. There are some specific changes that we would look for, some of which I have already mentioned around the trigger, and also around the remedy, but it is welcome.

Q 16

Tracey Crouch: Do you have any views on the dangerous dogs clauses? Obviously some people who come to Victim Support may well have been the victim of a dog attack.

Adam Pemberton:  It is not a specific area, other than that, in our view, a victim of dangerous dog attack should be offered support as and when they need it. Again, that depends on their need. It is important that we get the point across that an organisation such as ours listens to what the victim says they need. There is not a one-size-fits-all provision here; it is very much about saying, “Do you need any help? What might it be? How can we meet those requirements?” In that sense, we would obviously treat them according to their individual case, but I have no specific feedback for you on that part of the Bill.

Q 17

Tracey Crouch: My final question is on children as victims. Do you think that the Bill goes far enough to protect children who are victims of antisocial behaviour, or of other offences in the Bill?

Adam Pemberton:  We can always do more, but, again, it is about listening to the victim and meeting their particular needs. For children and young people, both when they have been victims of crime and when they are witnesses in court, we can still do more to meet their specific needs—not treating everyone the same, but listening to what they have to say and making sure that services are there, because at the moment there is not a consistent service across the country for children and young people when they have been victims of crime or when they are witnesses.

Q 18

Tracey Crouch: Do you think that extra protections should be put into the legislation?

Adam Pemberton:  I actually think that the protections in the Bill around the specific issue of ASB for children are fine.

Q 19

Simon Danczuk: I want to ask about the community trigger. I have been reading the Rochdale Observer newspaper—I do not know whether you are familiar with that august publication, but I certainly am—which has reported on a particular case from the Smallbridge area. A gang of young people made local residents’ lives a real misery around Stevenson square. It was serious stuff and they made things really difficult. The article states:
“Residents were initially too frightened to speak out”
against the gang members. With the community trigger, on the one hand there is the reporting threshold that the legislation proposes. On the other hand, there are the victims: elderly people whose lives are being made an absolute misery, who are reluctant to report or to get involved in reporting anything, or to be identified. How do you think the two will tally?

Adam Pemberton:  This is very real issue. I was recently in Nottingham talking to a couple who had gone through persistent antisocial behaviour. There is a sense that people put up with it for a very long time before they even make the first complaint. That comes back to the point about a numerical trigger: the idea that if there have been only two complaints, it has only happened twice, is nonsense.
The issue is also—this applies to antisocial behaviour more generally as well—that victims have a very low expectation of what they should have a right to receive. Even victims of quite serious crimes sometimes say, “Oh, well, I didn’t want to ask for help because someone’s got it worse than me and I did not want to waste people’s time.” There is therefore a broader challenge about connecting people going through that experience with the understanding that they do not have to go through what they go through, that help is available, and that there are ways of accessing support.
Anyone who has been a victim of antisocial behaviour can call our support line and be connected with a local team who can talk to them about the options and explain what might be possible, and we try to promote that as much as possible, but it is difficult. There is a widespread problem of the pitifully low expectations that victims of crime have about what help should be on offer and what they might be able to get done on their behalf.

Q 20

Simon Danczuk: Do you share my concern? From my experience of casework and people coming to see me about antisocial behaviour, I get the impression that, if the Bill is implemented as the Government propose, when I contact the police on behalf of a resident or constituent, the police will say, “We haven’t had the three phone calls, or the three reports coming in to us. That is why we haven’t taken action so far.” It will become formalised like that, and make it more difficult for victims of this type of crime to get action taken.

Adam Pemberton:  That is why our argument is that it should not be about the number. It should be about someone having assessed the impact. In the case you gave of the elderly residents, there is clearly a huge impact on their lives. They are potentially vulnerable. It is very detrimental; they are suffering harm as a result. That should cause the trigger to be pulled and things to happen. That is a better test, a better way of meeting someone’s need, than a bureaucratic sense of having passed the right number or not.
There is a wider point about this. The police and crime commissioners should be finding out in their areas what the types of crime are. If there are particular pockets of antisocial behaviour, they should learn and know about that, so that when they commission, they can ensure there is provision in the area, or across the PCC area, to ensure that help is on offer.

Q 21

Stephen Mosley: I am interested in the community remedy. From your experience with victims, how would they feel about having a policeman come along, offer them a list of remedies and then selecting one of them? There will be different types of remedy on offer. Different people react in different ways. Some people might think something deserves more than someone else.
If they think it is a first offence, they might be quite light. If they know it is someone who has done something similar to seven houses down the road, they might go for something more serious. Can you explain from a victim’s point of view, how they would make a choice on how severe to be? Should they know about previous incidents and whether people have done something similar?

Adam Pemberton:  There is a wider point. In terms of setting the menu for the community remedy, we think there ought to be some victim engagement in that process. That would not be on an individual case-by-case basis so that it changes. In the way that PCCs have a duty to consult victims about services and their needs, we think this is an area where there is an opportunity for victims to be involved in drawing up the menu.
It is important—and comes back to something we mentioned earlier about restorative justice more widely—that it is optional for victims to participate in the process. There is nothing in the Bill that says the victim has the right to opt out. It ought to be formalised in the Bill that there is an opportunity to participate if victims want, but they will not be forced down that route. A lot of victims have said to us that they do not want to be involved, that they do not think they are the right person to make that decision, someone else ought to. This should only be where victims want to participate in the process.
There must be a limit to the amount of information they can have. The key point for me is that victims still feel like an afterthought in the criminal justice process. They feel sidelined and that their voice is not heard. The positive thing about the remedy, for those who want and choose to be involved, is that they have an opportunity to be involved and have a bit of a say; not to determine the whole process but to have a bit of a say in it. All the experience we have over nearly 40 years is that that helps them move on after crime, that helps them get their lives back on track afterwards.

Q 22

Stephen Mosley: Playing the devil’s advocate a bit here, one could imagine a situation where a young kid throws an egg at someone’s window. Depending on whose window they hit, they might get very different community remedies. They might have 100 hours community service or just get to say sorry to the person. Do you think it is fair that, for the same offence, you get wildly different remedies?

Adam Pemberton:  I think it is fair that the impact on the victim is taken into account in that situation. In those situations, two seemingly identical scenarios can have quite different impacts on the victim. The point we are trying to make is that the impact on the victim should play more of a part in those sentencing decisions.

Q 23

Bridget Phillipson: We all want to see improved support for victims and victims being at the heart of this. You talked about victims often feeling like an afterthought. How would you judge the impact that is likely to result from the cuts to the criminal injuries compensation scheme, in terms of how victims might feel about that, as well as the impact on the work of victim support in supporting people to make claims where eligible under the scheme?

Adam Pemberton:  On criminal injuries, I think we recognised, when the changes were proposed, that some changes needed to be made to the scheme. The proposed hardship fund was a way in which you could tackle some of the most immediate and pressing needs. We have worked closely with the Ministry of Justice and the Criminal Injuries Compensation Authority to make that process work, because you are right: we have quite a lot of victims whom we work with, who are eligible for claims and whom our advisers work with to go through that process. I would need to come back to you on specific impacts since those changes have come in—I will take that away and come back to you.
The most important thing, though, is still about processing quickly, and the sense of not making people hang around. Our philosophy is very much about trying to help people move on after having been a victim of crime—not perhaps to solve every single problem, but to try and get them back on track, depending on how big an impact they have had. A long drawn-out criminal injuries compensation process simply does not help that to happen. However, if it is okay, I will come back to you with some thoughts.

Q 24

Bridget Phillipson: I had a couple of cases, when the scheme was operating as previously, involving dangerous dogs and dog attacks, where victims’ families had sought to make claims for criminal injuries compensation. However, because the law is a bit unclear in that area, it was leading to some confusion about the claim for compensation, with the guidance under the scheme. Do you think that greater clarity is needed in the legislation on dangerous dogs, and might that help victims?

Adam Pemberton:  Again, I think I would need to come back to you on that. In general, the complexity, and the sense that victims feel victimised by going through all that complexity and by not understanding where they are in the process, is a very big issue. People tend to become less confident in the criminal justice system the closer they get to it. That is a challenge, not only for the Bill, but more broadly, in terms of victims’ experience and raising their expectations.

Jim Dobbin: Thank you, Mr Pemberton. There do not seem to be any further questions for you.

Adam Pemberton:  Thank you.

Examination of Witnesses

Libby Clarke and Emily Wilson gave evidence.

Jim Dobbin: Our next panel of witnesses is from Fair Trials International. For the record, could you introduce yourselves briefly?

Libby Clarke:  Good afternoon. I am Libby Clarke, head of law reform at Fair Trials International.

Emily Wilson:  I am Emily Wilson, law reform officer at Fair Trials International.

Q 25

Gloria De Piero: Can you tell us what the Bill does well and whether it can be improved?

Libby Clarke:  We are grateful to have an opportunity to comment on the Bill. Fair Trials International has long been interested in the operation of the extradition process from the UK. We are here today with a particular view to comment on part 11 of the Bill. We note that there are a number of ways in which part 11 addresses some of the technical issues arising out of the Extradition Act 2003. As such, we think that clause 126 on the date of the extradition hearing, clause 128 on asylum, and clause 129 on deferred warrant or request are all amendments that we welcome as addressing technical problems that have arisen operationally.
We are also pleased that the issue of timelines in relation to appeals against extradition have been addressed in the Bill, particularly in clause 127. We have a couple of comments to make on that clause, which I can come on to later. We also have some concerns surrounding the introduction of a leave requirement on appeal, which we would like to address.
There is something we would consider to be a missed opportunity within part 11 to address certain other issues relating to the Extradition Act, and particularly the operation of the European arrest warrant. We think that amendments previously raised by us in submissions, particularly in relation to the Crime and Courts Act 2013, could be introduced within the Bill. If possible, we would like to have the opportunity to point out four specific amendments that we think could be introduced in the Bill.

Emily Wilson:  Libby has covered everything that we want to comment on.

Libby Clarke:  Would you prefer it if I addressed the issues in the Bill first?

Gloria De Piero: Whichever you feel best.

Libby Clarke:  We will start with clause 127. As I said, we have long been concerned about the timelines for appeal. Fair Trials International was heavily involved in the case of Garry Mann, in which the appeal deadline against the order of extradition was very narrowly missed in a way that was criticised by the judge in question. We have noticed that there have been subsequent calls for flexibility on timelines. At present, the timeline is seven days, and that is completely intransigent. If that is missed by even one hour, there is no flexibility.
We are pleased that flexibility has been introduced, but we have concerns regarding the specific formulation. The formulation in clause 127(1)(c) states that flexibility is brought in,
“if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.”
We note that in the report following the Scott Baker review, it was suggested in paragraph 10.6 that flexibility should be built in by granting the court,
“discretion to extend the time limit in the interests of justice.”
It is our view that that broader formulation on flexibility would be preferable, because in that period in which an appeal is being prepared and submitted, the requested person on extradition is reliant on others to assist them. If they are detained, they will to a certain extent be reliant on the prison officials. Hopefully, they will have legal representation and therefore be reliant on their representative.
In his submission to the Scott Baker review, Alun Jones QC noted the strains that are put on legal aid lawyers and that sometimes deadlines are missed simply through forgetfulness or other factors, and that an individual facing extradition should not have their rights affected by such considerations. We think that the broader formulation suggested in the Scott Baker report would be better at meeting all those different circumstances.
One thing that we have long called for is not only the introduction of flexibility, but an extension of the timeline. We were disappointed that the proposed amendment did not extend the timeline for category one cases from seven days to 14 days. We think that seven days is too short: a period of seven days only leaves five days for a solicitor to file and serve a notice of appeal. We therefore think that 14 days would be more appropriate in relation to the other categories.
That becomes particularly important with the proposed introduction of a requirement of leave to appeal. The process of requesting permission for leave to appeal is slightly different from simply activating an automatic right of appeal by submitting grounds of appeal. We therefore think that the timeline should also be extended to take into account any more onerous requirements that would accompany the process of requesting leave to appeal.
In essence, we would follow the recommendation of the Scott Baker review that an extension from seven to 14 days would be preferable, but we would ask that that be combined with flexibility. In the case of Lukaszewski, in which the issue of flexibility surrounding timelines was addressed, Lord Mance suggested that there should be both an extension to 14 days and flexibility. That is our position on that amendment.

Q 26

David Hanson: How does the UK’s proposal on the 14-day period compare with other European partners or other countries abroad generally?

Libby Clarke:  I am afraid I do not have that information to hand, but we plan to make a written submission, so I could come back in writing with some comparative data if that is of use.

Q 27

Stephen Phillips: Before you move on, Ms Clarke, you referred to the seven-day time limit and said that it was for filing a notice of appeal. Forgive me; I am unfamiliar with that area of the law and of practice. Is that simply a short notice of appeal document that must be filed within seven days, unaccompanied by any materials? Why is seven days not long enough?

Libby Clarke:  It is a straightforward note of appeal. In essence, our concern is that an individual at the first hearing would often be reliant on a duty solicitor, and would then have a short period of time in which to find representation and gather the information that they want to use in the notice of appeal.

Emily Wilson:  As Libby correctly said, it is a short notice of appeal, but you at least have to have a summary of your grounds for appeal. Often in extradition cases, by virtue of the fact that someone is being extradited to another country, grounds for appeal may involve them gathering evidence in the other country. If they have human rights concerns, they may need to get evidence of the human rights situation in that country. It can be very difficult to do that in a time frame of seven days. They have to find someone in that other country who can get hold of that evidence.

Q 28

Stephen Phillips: That is obtaining the evidence. I understand that that might take considerably longer than seven days, but lodging the document with the grounds on which it is said that the original decision was wrong can be done in a matter of minutes.

Libby Clarke:  Provided that you know those grounds exist. There have been a number of recent cases in which duty solicitors, at the first stage, have not even made points relating to potential bars to extradition. In a recent case, a Polish requested person named Juszczak had strong article 8 reasons why extradition should not take place, but they were not even raised by the duty solicitor in the first instance.

Q 29

Stephen Phillips: I do not want to interrupt, but are there not two points in that? First, why does one need a longer time limit to deal with the incompetence of lawyers? Secondly, how will a longer time limit deal with that issue in circumstances in which the lawyer has obviously missed the point the first time around? There is no guarantee that it will occur to them in the second seven-day period that you are suggesting they be given.

Libby Clarke:  It would not necessarily be the same lawyer. It would be a duty solicitor acting in the first hearing.

Q 30

Stephen Phillips: So it is pot luck—getting a lawyer who is not as incompetent as the first lawyer—and people might stand a better chance of that pot luck turning up trumps, to mix my metaphors, if they had 14 days instead of seven. Is that right?

Libby Clarke:  Our position is that extradition is an extreme sanction against an individual who, in many cases, will not yet even have been convicted of an offence. As such, there should be a sufficient amount of time for an adequate appeal to be brought. Indeed, 14 days has been given for non-category one cases. It is our position that we do not see why the same amount of time could not have been given on category one.

Q 31

Stephen Phillips: I will go and read Lord Mance’s speech, but is the much more sensible solution not your first solution—that you leave it at seven days and there is discretion to extend in the interests of justice? That would encompass the client having been badly advised or the case having been badly argued.

Libby Clarke:  With the introduction of a leave requirement, which is also brought in through clause 127, there is a far more onerous application process in which the grounds to appeal have a far higher burden to meet: they need to show that there is an arguable case. We would suggest that the threshold should be an arguable case as in judicial review cases, which is what Scott Baker recommended. As such, that would require lengthy grounds, and the instruction of counsel most probably, in which to argue that point. It would indeed require a longer period, given the more onerous requirement.

Q 32

Stephen Phillips: Did you want to move on to your second area? I interrupted you.

Libby Clarke:  We wanted to address more specifically—

Jim Dobbin: Are you going back to your previous statement?

Libby Clarke:  We wanted to address the introduction of a leave requirement for appeal. We note that it has perhaps been done in recognition of the number of unmeritorious cases that are being brought before the High Court. Our concern is that there are significant problems at the first stage, particularly in relation to the quality of duty solicitor representation, which we are concerned will only get worse with any reduction in the availability of legal aid due to the proposed recommendations in that area. While those problems remain, we have real concerns about any restriction on access to the appeal courts.
We note the statistics in the Scott Baker review. In 2010, 12.65% of appeals were successful, and in the first half of 2011 it was closer to 7%. We acknowledge that those percentages are low, but we do not consider them to be insignificant. We have concerns that a large number of those successful appeals would not be successful if the individual was required to demonstrate an arguable case, or whatever other test was set, for a leave requirement. We are also concerned that there is a distinct lack of detail within the proposal on what the leave requirement would involve. We note that Scott Baker suggests that it should reflect the process for judicial review, which is that there should be an initial application on paper, with an automatic right to renew orally. If such a requirement was to be introduced, our preference would be that the judicial review process was involved, but it is our strong position that the introduction of a requirement to get permission to appeal is inappropriate in these cases.

Q 33

Stephen Phillips: Where is the leave requirement in the amendments created by clause 127?

Emily Wilson:  It is in clause 127(1)(b).

Q 34

Stephen Phillips: It is that, and subsections 2(b) and 3(b) of that clause.

Emily Wilson:  Exactly. The existing clause refers to the right to appeal, and that right now lies only with the leave of the High Court.

Q 35

Stephen Phillips: Is the complaint that there is no indication of on what grounds permission may or may not be granted?

Libby Clarke:  That is one of our complaints, yes.

Q 36

Stephen Phillips: Are these proceedings criminal or civil in nature?

Libby Clarke:  At present, the appeal is a civil appeal.

Q 37

Stephen Phillips: Will it not simply be the ordinary test for permission to appeal in the High Court, therefore?

Libby Clarke:  We would suggest that it should be the judicial review test, as Scott Baker recommends.

Q 38

Stephen Phillips: What is wrong with a requirement that the appellant, or the proposed appellant, shows a reasonable prospect of success for the appeal succeeding? Is that something you would be content with?

Libby Clarke:  Our concern is more about the process than the standard.

Q 39

Stephen Phillips: That is inconsistent with what you said a moment ago. It was your concern that it was the standard and not the process.

Libby Clarke:  Apologies if that was the impression I gave. I suggested that, in line with Scott Baker, the standard should be an arguable case, but our bigger concern is about the process and that the individual should get to have their day in court, and as such should have—

Q 40

Stephen Phillips: But they have already had a day in court, Ms Clarke, and they have lost.

Libby Clarke:  Agreed, but we have concerns that their day in court was not one on which they were given fair access to justice. I draw your attention to the case to which I referred.

Q 41

Stephen Phillips: I am happy to look at it. But the problem with having a standard of an arguable case is that it is extremely low. An arguable case is simply a case that any competent advocate can get on his feet and argue without having a red face. That essentially means that there is no leave requirement at all.

Libby Clarke:Given that our position is that there should not be a leave requirement, our point is that if a leave requirement was to be introduced we would withhold from briefing if there was an arguable case threshold.

Q 42

Stephen Phillips: Because you have essentially removed the requirement for there to be a leave requirement in the first place if that is the standard. That is the point. You are seeking to get in by the back door your first argument, which is that there should not be a leave requirement at all.

Libby Clarke:I am not sure that the requirement of demonstrating an arguable case is akin to there not being a requirement.

Jim Dobbin: Any further questions? Any further points to make yourselves?

Libby Clarke:  We note that there is no introduction of a requirement of leave to appeal on the requesting state, so there is no equality in terms of that new hurdle to be crossed on appeal. That is an issue of concern for us because the extradition process is already, to a certain extent, pitched in favour of the requesting state in that it has access to the Crown Prosecution Service specialised unit on extradition, and a funded representative, whereas the quality of representation for the requested person is distinctly different.

Jim Dobbin: Thank you very much. The Committee has heard your views on the Bill. Thanks for giving evidence.

Libby Clarke:We did hope to raise issues on the additional points that we thought should be introduced in the Bill. Our concern was that the further amendments on extradition under the Crime and Courts Bill were introduced at such a late stage that Parliament did not have the opportunity to consider them. Therefore, we would like to make our submissions on four areas in which we think amendments could be made and which should be introduced at this stage.

Jim Dobbin: Yes, we take that point on board. Thank you for coming along. [Interruption.] You want to do it now?

Libby Clarke:We wanted to make oral submissions.

Jim Dobbin: I thought you said that you were going to submit them.

Libby Clarke:I meant orally here today.

Q 43

Gloria De Piero: What kind of time scale? How long will it take you to explain?

Libby Clarke:We can run through them very quickly, and we can follow up with written submissions. Our first concern surrounds the issue of deferred extradition in situations where the case is not trial ready in the issuing state. We have had a couple of key cases where individuals with whom we have been involved have been extradited to then face a lengthy period of time in pre-trial detention while waiting for their case to go to trial. The most notable of these is the case of Andrew Symeou, a young student who, while on holiday in Greece, was out on a night when an individual had an accident that resulted in his death. Andrew Symeou then returned home to the UK, but was extradited some time afterwards to face charges. He was in detention for 10 months in Greece in poor conditions. Alternatives to detention were not entertained on the basis that he was a foreigner and therefore a flight risk. We have a number of other cases in which that occurs. It is our view that there should be a bar to extradition in cases of prematurity, when the case is not yet ready to be heard in court in the issuing state. We have amendments on that, which we can propose in a written briefing.
The next point relates to cases where there is a European arrest warrant relating to conviction, in which the requested person is either a UK national or resident in the UK, and indeed could serve their sentence in the UK. We propose that there should be a right to refuse extradition coinciding with the individual serving their sentence in the UK. That is allowed for under article 4(6) of the framework decision, and has been recommended in the Scott Baker review. We would propose an amendment on that basis.
We also have concerns about the current lack of discretion for courts to seek further information from the issuing state in cases where there is potential mistaken identity. We had a client named Edmond Arapi who was almost extradited to Italy, though thankfully he was not. In his case it was clear in the papers before the district judge that he could not have been the individual wanted for the crime, on the basis of a very strong alibi that showed he was at work in the UK on the date the crime was committed in Italy. It was not open to the judge to request further information from the issuing state to establish that the person, though correctly identified on the face of the warrant, could not have committed the crime. We therefore have a proposed amendment to address that.
Finally, we propose the removal of means-testing for legal aid in extradition cases, with an amendment to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. That was raised by the Scott Baker report as requiring careful and urgent consideration, and we fully support it.

Jim Dobbin: Thank you very much. We now hear evidence from Liberty.

Examination of Witnesses

Isabella Sankey and Katie Johnston gave evidence.

Jim Dobbin: Welcome to the evidence session.

Q 44

Simon Danczuk: Do you not welcome the Government’s watering down of legislation to tackle antisocial behaviour?

Isabella Sankey:  Thank you for that question. Of course, there has been a political debate, we understand, over whether this legislation does indeed water down the current regime or toughen it up. I think it does both in different ways, although I realise I am not going to please anyone on the Committee by saying that.

Simon Danczuk: Can you explain that?

Isabella Sankey:  By removing the criminal conviction for breach, in some senses the sanction is less than the one that currently exists. That said, more sanctions have been created to fulfil this slightly odd hybrid situation we now have of the criminal justice system being pushed into the civil law, such as sanctions relating to young people specifically and the new mandatory eviction power introduced by the Bill. In some ways the sanctions are arguably harsher.
In addition, the huge relaxation of threshold types of behaviour to be covered, and so on, means that the system will most likely apply to many more people for a much broader range of activity. From that angle, it is a tougher regime because it captures more behaviour. I do not think you can characterise it as tough or less tough. I would characterise it as largely similar, though.

Q 45

Simon Danczuk: I was reading your article of February 2011 in The Independent about what you called “Gangbos”, in which you say that gang members need support rather than to be criminalised. Do you take that view in relation to people who display antisocial behaviour—that perpetrators need support rather than being criminalised?

Isabella Sankey:  I do not think that is a precise quote taken from the article, but I take your broader point. It is important to recognise that Liberty, as an organisation, will understandably have principled concerns about civil liberties and human rights infringements. That is not to say that we are in favour of antisocial behaviour or criminal activity, whether low or high level. Our critique of the current regime, and the one the Bill perpetuates, is that a potentially progressive, clever way of trying to divert people away from the criminal justice system, and deal with the misery that antisocial behaviour causes, has a fundamental illogicality at its heart. What ends up happening in practice is that people who already have behavioural problems and are causing nuisance, etc., are then set up to try and abide by a more stringent set of rules than the average person has to: personalised penal codes. We worry—this is borne out by the high breach rates—that somebody can breach their antisocial behaviour order by being in a place they are not supposed to be, whether or not they are engaging in antisocial behaviour there. They have been set a much higher set of criteria to abide by, thereby making it more likely that they will fall foul of them, resulting in, at present, automatic criminalisation, but under the proposed system quite heavy sanctions.
In trying to target the category of behaviour that falls short of criminal activity but is none the less problematic and causes misery in our communities, targeted interventions are needed, combined with support and resourcing for the individuals concerned, rather than this almost lazy approach, where the Home Office is in charge and orders are slapped on people, hoping that the problem will be solved.
We welcomed the ASBO review that was announced by the Home Secretary in 2005. We were hoping for a much more substantive critique of how the policy has worked, not just producing statistics but producing analysis of where it has been found to work or fail. Instead, we got a quite ideological approach, which stated that there is too much bureaucracy and red tape and that it needed to be streamlined. We do not think that has been evidenced by the practical experience.

Q 46

Simon Danczuk: Okay. Do you ever think about the victims when you are formulating your views?

Isabella Sankey:  Absolutely. Liberty is a human rights organisation, and we care very much about the rights of everybody in society, whether vulnerable people being harassed and intimidated or people who find themselves involved in such behaviour and who have not had the proper support and diversion. I should say, in response to that question, that another problem with the regime as it stands and as it will be perpetuated is that there is an unsatisfactory position, whereby the broad nature of the antisocial behaviour definition may mean that activity that is criminal per se—hate crime, as we saw in the tragic case of Fiona Pilkington—is not properly dealt with by the police, because they are following the antisocial behaviour model in how they deal with reported incidents. That means that vulnerable people—victims—are being less protected because we have diverted the police into thinking about these behaviours as antisocial, rather than just straightforward serious criminal activity.

Q 47

Simon Danczuk: I will just make the point that “victim” is not a four-letter word, but you had not used it until I raised it. I wonder if your emphasis is strong enough in terms of representing victims better. Could you give us a couple of quick examples of where you have put the victim first in terms of your proposal?

Isabella Sankey:  Absolutely. Liberty conducts litigation in the courts. We have a number of cases live. In recent cases we have represented victims’ interests using the Human Rights Act, that brilliant piece of legislation, which contains positive obligations to protect vulnerable people. Using article 2 of the Human Rights Act, we sought an inquest into the death of Naomi Bryant, who was killed by somebody released on parole who had a dangerous track record. We secured an inquest and a narrative finding in that case, which would not have been possible without the Human Rights Act and without our intervention. The inquest found that there had been huge failings on the part of a number of public bodies to communicate properly about the risk that the individual posed and their past behaviours, which led to an inappropriate early release. That is very clearly a case in which a victim was entirely let down by the system and we used human rights protections to try to ensure that lessons were learned and that that kind of failing would not happen again.
As you may have seen in the Supreme Court yesterday, a case has been brought on behalf of military personnel who were not properly protected on the battlefield. That is another example of how the Human Rights Act applies to protect people who put themselves in a vulnerable situation. I could go on and on. I am very happy to provide further written briefing on how human rights protect victims, and also on how we work to protect victims.

Q 48

David Rutley: On the same theme of victims, we met the PCCs earlier; they will have victim support services working with them to provide support at local level. What do you think can be done to better support the PCCs in providing those services, and for the best and most effective approach to helping the victims?

Isabella Sankey:  I should probably start by saying that our position is that those support services should not be handed over to the PCCs—not at this stage, at least. We have very deep and principled concerns about the role of police and crime commissioners. Practical experience to date has not exactly shown a happy start for their role, particularly in their choices regarding allocating resources.
On the particular point about victims, there is some really flawed thinking in the decision that victims’ services should be left completely to local decision making. It is our understanding that although the experience of victims of course varies, depending on a number of factors, those factors are probably more likely to be to do with the individual concerned, the nature of the crime that they have suffered, and a whole host of things that are not really dependent on local circumstances or which particular region they are from, or whether it is urban or rural. It is much more likely to be about factors that can read across the country, so we think that it is a mistake to give the responsibility to the PCCs, particularly at this early stage of that experiment in policing.

Q 49

David Rutley: Okay, but given that there is a high probability that they will be given the responsibility—that is the Government’s proposal—what support should be given to the PCCs to enable them to do the job properly? You may not like it, but they are going to be given the responsibilities, so what can be done to enable them to do the job well?

Isabella Sankey:  I imagine that a good set of learning and experience has been developed by the main provider of victims’ services, Victim Support. That should be made available as far as possible to PCCs. There could be guidelines on how they go about contracting out victims’ services. One thing that we have seen with the roll-out of the scheme so far is that a lack of standardised procedures means that contracts have been awarded purely on the basis of personal relationships, rather than on qualifications for doing the job. We have seen that with the appointment of certain assistant commissioners and so on. There should be a set of quite robust standards setting out the bare minimum that PCCs should ensure when they are organising services.

David Rutley: Turning to a different subject, I have a question on port and border controls. Do you acknowledge that terrorists travel to plan, raise money and recruit? They take part in activities that are terrorist by nature and can cause untold damage to innocent victims. In relation to that, do you think that your proposals for significantly reducing the powers in schedule 7 would detract from the ability of the police and other authorities to detect terrorists, and would hinder those important efforts?

Isabella Sankey:  Thank you. Of course we accept that terrorists travel, that the terrorist threat we face is international in scale, and that appropriate powers and resources must be made available to the police and our intelligence services to deal with it. It is our experience, particularly in the field of counter-terrorism work, that the most successful powers are those that are targeted. The best way of dealing with a terrorism threat is through the targeted use of powers, resources and legislation. The best results occur where work is intelligence led, rather than using a blanket power, as schedule 7 is, and as the former section 44 of the Terrorism Act 2000 operated. In relation to section 44, powers to stop and search without suspicion failed to catch a single terrorist, yet they led to many young men—particularly men of black or Asian origin—being stopped and searched routinely on our streets.
One argument that is incredibly valid in this context is that if you apply powers in that way and routinely stop innocent people, particularly from communities that you think you need to gain intelligence from, you will cut off good will and the intelligence that you need. With schedule 7, we know that you are 42 times more likely to be stopped under that power if you are of Asian origin than if you are white. It is not hard to see how that kind of harassment can lead to alienation and lack of trust in the authorities. Indeed, we have seen that in that particular community.
Of course, the police must be able to stop and search when they have suspicion of wrongdoing. Let us not forget that search powers are already available at ports and borders—you go through scanners and have your bags searched—and are exercised routinely against everybody, so it is not as if search powers do not exist in this context. But we would argue that if you detain someone for an extended period of time—currently it is nine hours; the Bill reduces it to six, but it is still a good amount of time—you must at least be forming a suspicion that the person has broken the law, or you believe that they are breaking the law.

Q 50

Stephen Phillips: In Liberty’s written evidence on the draft Bill to the Home Affairs Committee, it said that its concerns about the use of ASBOs were well documented. Its principal concern, as I understand it, was that ASBOs dangerously blur the distinction between serious criminal activity and nuisance. Given that, surely the one thing in the Bill that Liberty must welcome is the fact that ASBOs will disappear and antisocial behaviour will be dealt with in the civil courts, which will not lead to a criminal record, rather than in the criminal courts. I ask this, Ms Sankey, because Liberty always appears to be against absolutely everything that any Government come forward with that public want to protect them and make their lives better—I think that was the line that Mr Danczuk was going down with his questions on whether you ever stand up for the victims.
I want to know two things. First, do you welcome the absence of the criminalisation of young people in particular by the removal of ASBOs? Secondly, why do you not start standing up for victims—the constituents we represent —a little bit more?

Isabella Sankey:  I utterly refute that we do not welcome anything that the Government do. As I already illustrated, we are huge fans of the Human Rights Act and the European convention on human rights—Winston Churchill’s legacy in Europe—and we actively seek to promote those pieces of legislation, to celebrate them and to try to unpack to the public how they work, contrary to what the public will hear from many of their elected representatives.
We support many pieces of legislation that the Government bring forward; not least, most recently we supported the equal marriage Bill. We are not always the awkward squad, I assure you. I absolutely recognise what you are saying about removing the criminal sanction. That is something that we welcome wholeheartedly.

Q 51

Stephen Phillips: Let us concentrate on antisocial behaviour. Given that you welcome the removal of the ASBO and the fact that these matters will be dealt with in a civil court, not in a criminal court, what is wrong with the proposals in the Bill?

Isabella Sankey:  The problem that remains, in our view, is that this widens the category of behaviour to which it will be applied so that it is more likely to be used inappropriately. We have already seen the current regime being used inappropriately. I am sure that you all have read—[Interruption.]

Q 52

Stephen Phillips: I do not want to stop you, but is that not simply a matter of opinion? You think that it is used inappropriately, but it is used lawfully in accordance with what Parliament said can happen. If this Bill passes, it will be what Parliament says can happen in relation to the behaviours that this Bill is targeted at. What you really mean when you say that is that it can be used in a way that Liberty does not like.

Isabella Sankey:  Not at all. Of course, if the legislation passes, it will be used as Parliament has set out, but the question that we are discussing here is what is appropriate in terms of public policy. I would argue that nuisance and annoyance is too broad a category to be caught in this proposed regime, given that we are all capable of causing nuisance and annoyance to one another, but that does not mean that we should be sent off to the county court for it. In our experience, particularly over the last 10 years, as the powers that have been granted by Parliament have become wider and wider, you are entrusting a huge amount of discretion to the individuals exercising those powers—sometimes too much discretion.
We have had police officers and other public bodies tell us the very same thing: one effect of over-broad legislation is that the buck essentially passes to these bodies, giving them quite unrealistic goals in terms of how they enforce the law. Everyone understands the law of unintended consequences. It is a matter of common sense that when something is over-broad or the threshold is too low, it will be used, by anyone’s standards, in an inappropriate way. Of course some of the tests are subjective, but as a matter of public policy, surely the goal must be to set the legislation in a reasonably tight way so that the interventions are targeted and you are not over-burdening police and local authorities.

Stephen Phillips: Let us leave it there.

Q 53

Stephen Mosley: It is funny that that is precisely the discussion that I wanted to move on to in terms of community protection notices. When we had the local authorities and housing associations here on Tuesday, I asked them what checks and balances they would put in place, because not only the police will be able to issue community protection notices; housing and local authorities will be able to as well. If you do not comply with such notices, it is a criminal offence. When I asked the question on Tuesday, we were interrupted by a Division and I did not really get an answer, so I will ask the question now. What protection needs to be in place to stop local authorities issuing notices inappropriately?

Katie Johnston:  In our briefing, we have suggested amendments to most of the antisocial behaviour instruments in the Bill. These include tightening the definition of the behaviour that can trigger an order and raising the threshold back to the criminal burden of proof, which is the current burden to be met under ASBOs. As has been said, it is not only Liberty that has such concerns about the breadth and subjectivity of these definitions. Many of our amendments were also proposed by the Home Affairs Select Committee when it examined the draft Anti-social Behaviour Bill, the provisions of which are virtually identical to the ones proposed here.
In terms of community protection notices, IPNAs and criminal behaviour orders we proposed tightening the definition of the behaviour that that individual could commit to trigger one of these orders; raising the burden of proof; and also introducing tests for necessity and proportionality—not just in relation to the imposition of the order to begin with, but each of the requirements within the order itself. We think that those would make a real difference in providing safeguards.

Q 54

Stephen Mosley: One thing that concerns me, especially with the community protection notice, is that the council can issue it, and if you do not think that that is a valid notice—it has been applied for bad reasons—it is then up to you to go to the magistrates court to appeal it. To me that sounds like you are turning justice upside down. You are guilty unless you go to court to prove you are innocent.

Isabella Sankey:  Absolutely. I think pre-judicial authorisation is a must for a notice such as this.

Jeremy Browne: Hello. Good afternoon. Katie, or Ms Johnston, I have in front of me the briefing that you sent to everybody on the Committee. I assume so, because it is addressed to “Dear Committee member”. It has a list of what you would ideally like to change in the legislation. Some things on the list are predictable. That does not mean that people cannot be for or against them, but I was surprised by some of them. For example, you think that the Committee should remove the new criminal offence of forced marriage from the Bill. Why do you think that that is a bad provision?

Katie Johnston:  We would be more reserved than that. Our amendment is to ask the Government to make its case for criminalisation. The Home Office, the Foreign Office and the Government have carried out a number of consultations over the last 10 years on criminalising that and creating this new offence. Many of the submissions, particularly by organisations that work in this area, such as the Southall Black Sisters who work with women and children affected by this phenomenon, have had serious doubts in the past about the value of criminalisation. Often the first question the victims ask when they come forward to seek help is, “Will my family be prosecuted?” Those organisations are rightly concerned that, if reporting these events will most probably lead to relatives spending time in prison or separation, it will deter victims from seeking help. We are not saying that we are opposed to criminalisation. If the Government can come forward and show us the evidence they have that, for example, the like criminalisation provisions in Scotland have been effective, or that the current civil orders are not effective, we would support the proposal. We want to see the evidence.

Q 55

Jeremy Browne: I understand that there is always a difficulty with criminalising an activity that largely requires you to report your own relatives—probably your parents —to the police.
We heard evidence just before lunch from chief executives of two organisations—Karma Nirvana and Freedom—and one of the witnesses had personal experience of forced marriage. They said that there was not going to be a problem of driving it underground if it was criminalised because it was already a subterranean activity, if you like. Nobody went round advertising the fact that they were coercing their child into marrying someone they did not wish to. They did not appear to share your concerns. Given that this issue has been discussed for 10 years, surely we could get on with introducing a criminal offence, unless Liberty has an aversion to criminalising anything ever.

Isabella Sankey:  We certainly do not have an aversion to criminalising anything. We lobbied strongly for the criminalisation of forced labour, which the previous Government eventually introduced. As Katie outlined, our concern is not that an already underground activity will continue to be so, but the reporting by individuals who are affected.
It is safe to say that the best organisations to speak to are those that deal with the vulnerable people affected. We understand that some of them have concerns about criminalisation, not because we do not want to send a message about how wrong the activity is and that it should not be practised, but more the pragmatic consideration of whether it will affect reporting. We understand that the Government have changed their position, initially not supporting criminalisation, but now coming round to supporting criminalisation. We are interested to know what has caused that shift.
There does not seem to be much evidence or commentary from the Government on how they think the current system is working and how it might be failing. I think there were 65 protection orders issued in 2011 and only a minor number of those were breached. That indicates that the present system, which is more nuanced, is actually working relatively well. Of course, you can never be sure. We would just like to see some further information from Government on how they think the present system is working and their assessment of the issue of unintended consequences.

Q 56

Jeremy Browne: May I ask about another on the list from Ms Johnston? Liberty would like Members to table an amendment—I am sure there will be members of the Committee willing to table your amendments—that we should remove the provision to give elected police and crime commissioners power to arrange victim and witness services in their local areas. I do not understand why anyone would feel a deep level of hostility to an elected person arranging services for victims in the area that they are elected to serve. I am curious to know why you are hostile to that.

Katie Johnston:  Isabella has already said that we objected on principle to having elected police commissioners. We have concerns about victim services. At present victim services are provided centrally by the Ministry of Justice, and a huge amount of expertise has been built up in that area. Our concern is that, if it is devolved to local regions, there is a risk of fragmentation, there will be inequality in victim services and it will become a bit of a postcode lottery.
In addition, PCCs are elected officials and victim services should not be dependent on political whims and fortunes. For an elected official, there is obviously a temptation to provide victim services for a particular constituency within their area or what is most popular, rather than targeting them on those most in need.

Q 57

Jeremy Browne: So it is really an aversion to the idea of elected PCCs seeking to discharge their duties in a way that they think will meet the sympathies of the residents of that area?

Katie Johnston:  In a way that affects particularly vulnerable people and in a particularly politically charged area of public policy. But our concern about fragmentation would hold good even if they were not elected. As I have said, the service has been administered centrally for years and a body of expertise that has been built up will be lost.

Q 58

Jeremy Browne: Thank you. Another one of the bullet points is that we should prevent children from being detained for breach of an injunction. Quite a few people have made points about under-18s, criminal behaviour and the injunction. I am just curious to know what sanction you think should apply. For example, there is a 17-year-old who is widely thought to be causing unhappiness to many people in a community. An injunction is applied for against him and is successful. Then he, with a complete disregard for the injunction, carries on behaving exactly as he was before, so inflicting misery on people in that community. I am just wondering what sanction you think should apply in those circumstances if that person so flagrantly breaches the injunction.

Isabella Sankey:  Traditionally, under contempt of court, if someone is found to be in contempt, they can be fined, asked to apologise to the court or imprisoned. Of course children cannot be imprisoned, which is why this Bill has to go to so many lengths to find new sanctions to apply to children. I think that there lies the rub, because when you start creating a novel regime and try to shoehorn it into the civil law when what you are really talking about is criminal sanction and punishment, you create a quite impossible situation. The list of sanctions available to be imposed on under-18s under this Bill is incredibly draconian. We are talking about curfew powers and requirements to be in a certain place—the positive obligations more akin to gang behaviour orders, control orders and terrorism prevention and investigation measures than antisocial behaviour orders traditionally.

Q 59

Jeremy Browne: I am keen to maintain the distinction in law between an adult—18-years-plus—and those under that threshold, and I recognise that there are distinctions, which is partly why I am not in favour of 16-year-olds having the vote, although my party is. There is a line and the age of 18 is a reasonable place to draw that line, although I recognise that in my constituency, and I suspect that of every member of the Committee, there are groups of teenagers, many of whom are under 18, who can on occasions, particularly on hot summer evenings, cause a lot of distress to, for example, elderly people who worry about going outside their flat because the children are throwing things around or ringing their door bell in the night and distressing them in various ways. It feels to me that we have to have some sort of sanctions to underpin these measures in those circumstances otherwise the people who might be on the cusp of adulthood, 16 and 17-year-olds, and groups of 18 and 19-year-olds will not feel any obligation to cease to terrorise people in their neighbourhood. If you were a Member of Parliament and someone came to you and said that these groups of 16, 17-year-olds were making their life thoroughly miserable, what would you do in those circumstances?

Isabella Sankey:  I think it depends very much on the behaviour. If the behaviour falls within the criminal realm, and the criminal law is quite extensive, there are already processes in place to deal with that, which include sanctions far less than imprisonment. The concern with this policy is that you fast track young and often vulnerable people into detention rather than the policy followed under the criminal justice model, which sees a sliding scale of sanctions being imposed. If the type of behaviour you are describing attracts a criminal sanction it would probably be along the community sentencing line rather than imprisonment. One thing that has to be borne in mind is that, of course, young people can commit heinous crimes, and when they do, imprisonment has to be an option, but it really must be only for the most serious offenders. If we believe in the rights of young people and children, we must accept that a different set of rules needs to apply to a certain extent, because of the very real implications for a young person who ends up separated from their family, in prison, rubbing shoulders with people who may have committed much more serious offences. It is that aspect that I think is lost in the Bill.

Q 60

Stephen Phillips: Let me take you back to the issue of forced marriage. I have received the briefing, as I think every member of the Committee has. You urge us to take out the sections of the Bill dealing with forced marriage, and I want to be clear about your evidence. Liberty does not have any evidence that criminalisation will lead to fewer reports being made to the relevant authorities. Is that right?

Isabella Sankey:  If I may, we do not urge the Committee to take it out. It is suggested as a probing amendment to ask the Government to explain—

Q 61

Stephen Phillips: Forgive me—my iPad has just shut down—but I just re-read your briefing and you were telling us to take out the forced marriage provisions of the Bill.

Isabella Sankey:  We said that we approached them with caution and that we have reservations. We defer absolutely to those organisations that do service provision on the ground, but I think you will find from looking at the responses to the Government’s consultation that they were very split between those organisations.

Q 62

Stephen Phillips: Slightly more wanted it criminalised than did not. I am concerned with the credibility of your lobbying on the Bill, because it seems to me that you are urging the Committee to take a course of action—namely, removing the criminalisation of the very serious problem of forced marriage from the Bill—off the back of absolutely no evidence. It is just a position that Liberty has taken, and I would, of course, say that it is because you are just the awkward squad.

Isabella Sankey:  That is not the case at all. The evidence is there in the responses to the Government’s consultation. We are merely asking the Government to do some further investigation by talking to those who know best—which is not you, me or any member of the Committee; it is the organisations that work with very vulnerable people—to try and find out the extent of the problem and whether this is a real risk. We would not object, in principle, to criminalisation if we did not think that there is a chance that it may push this practice further underground. In this context, we care absolutely, and only, about the victims.

Katie Johnston:  If I could assist you, in our briefing, we write: “We urge the Government to publish the evidence supporting the case for creation of a new criminal offence”—

Q 63

Stephen Phillips: Do you want to read the e-mail, Ms Johnston, with the bullet point in it, which says, “We urge the Committee to remove the forced marriage provisions in this Bill and the criminalisation of forced marriage”? I am dealing with the e-mail.

Isabella Sankey:  We will certainly go back to the e-mail and check, but to be absolutely clear—I want to provide complete clarity for the Committee—it is a probing amendment. We would like the Government to do further work and research in this incredibly important area.

Q 64

Jeremy Browne: I do not want to unnecessarily gang up on you, but I have the e-mail. It is from “KatieJ@Liberty-human-rights.org.uk”, and it says, “Dear Committee member, please find attached Liberty’s Committee stage briefing on the Anti-social Behaviour, Crime and Policing Bill. While Liberty is supportive of a number of proposals in this lengthy and substantial Bill, we also have serious concerns about certain of its provisions. Accordingly, this updated briefing contains a number of amendments, including amendments to…remove the new criminal offence of forced marriage”.

Katie Johnston:  It does contain that amendment, but we just want the Government to show us their evidence.

Isabella Sankey:  In our briefing, we are clear that it is a probing amendment. Apologies if the e-mail was written in too much of a summary form, but to provide absolute clarity, we would just like some further information. We are not opposed in principle to criminalisation, but we think that it is an area where the Government should tread carefully, because of possible unintended consequences.

Q 65

Simon Danczuk: Just a small point—you said earlier, a few minutes ago, that members of the Committee did not have enough experience to be able to comment on forced marriage. That is not the case. Some of my case work, in terms of being a Member of Parliament, has dealt with that very issue. I feel I do have some experience that is worth bringing to the Committee and contributing to the formulation of legislation on it. I just wanted to clarify that for you, Ms Sankey.

Isabella Sankey:  Apologies. I did not mean to impugn the experience of anybody on the Committee. What we are merely asking for is that the range of people who have this direct experience are brought together to provide evidence in this way, and that it is not something that is done in a knee-jerk way by Government, without the proper evidence base.

Jim Dobbin: Thank you for giving evidence this afternoon.

Examination of Witnesses

Gavin Grant and Clarissa Baldwin gave evidence.

Jim Dobbin: We have witnesses from the Royal Society for the Prevention of Cruelty to Animals and the Dogs Trust.

David Hanson: Welcome to the Committee, Mr Grant and Ms Baldwin. I support the clauses in the Bill and the Opposition will give them a good, fair wind, but we are concerned that there are some gaps in the legislation. I should welcome your view. If you had a free hand and our elected position, what steps would you take to improve the relevant clauses, to ensure that we both respect dogs and animals and have greater control over animals that cause damage?

Clarissa Baldwin:  Thank for offering us the chance to give evidence. Probably, we would like to start with a clean sheet of paper. We would like a consolidated Bill. At the moment, there is the Clean Neighbourhoods and Environment Act 2005, the Environmental Protection Act 1990, the Dangerous Dogs Act 1991, amended in 1997, and, again, another proposal to amend here. There is also the Dogs Act 1871 and now the Anti-social Behaviour, Crime and Policing Bill. Given the amount of time you have given to this important subject for dogs and dog owners, it would be best to have a new Bill that concentrates on dogs, so we know where to go to find the relevant pieces of legislation. It is all just a bit of a mishmash.

David Hanson: We are where we are and we have an opportunity in the next few weeks to table amendments, both in Committee, with all the Members here, and potentially on Report later on, to strengthen the clauses in the Bill that deal with attacks in the home and consider dog control notices and other issues, which I know, from evidence submitted by the RSPCA, the Dogs Trust, Battersea Dogs & Cats Home, Communication Workers Union and others—cemented by comments from the ACPO lead from the police this morning—are worthy of consideration. I welcome your view about the priorities, given that there is a chance for us to amend the legislation in the next few weeks.

Gavin Grant:  Thank you for that and for the opportunity to give evidence. I suspect that I may be the only person in the room—slightly surprisingly—who was present in the Home Office as the Dangerous Dogs Act 1991 was being drafted, when I was employed by the RSPCA in a previous guise. I echo Clarissa’s point, but as we are addressing the specifics of the Bill, my first observation is a concern that not going down the path of dog control notices is an error.
The community protection notices are substantial and are, in this particular context, the proverbial sledgehammer to crack the nut. The RSPCA has extensive experience, through its inspectorate, of the issuance under the Animal Welfare Act 2006 of advice notices, which do not have the legal standing that is proposed in the Bill, but we find comfortably in excess of 90% compliance with those notices. This is not just over the last year, but over the past five years that we have been issuing them. The benefit of that is that it is an early intervention with owners that corrects the inappropriate behaviours and enhances dog welfare. All of that is achieved without redress to legal sanction and the courts, which I think is of benefit in the straitened circumstances in which we exist.
All of us share a concern that the particular proposal that sits within the Bill currently could have unintended consequences. The old adage, “Let a sleeping dog lie”, is appropriate in these circumstances. I have the privilege of sharing my life with a Dalmation neutered bitch, Lucy. Dalmations have a particular attraction for children, for all the reasons that everybody will understand. If she is disturbed in her sleep at home, by a young child, one would not be altogether certain of what her reaction, as a dog, might be. In certain circumstances, I or my partner could find ourselves facing potential criminal sanctions because of the provisions of this particular aspect of the Bill.

Q 66

David Hanson: I am anxious to follow up on that, because I broadly support the vision to take action in the home; that is important, given the number of incidents that have taken place in the home. However, I would welcome some clarity either now or in submissions afterwards on this: what amendments would you seek to ensure that the legislation reflects the defence that you put?

Gavin Grant:  Indeed, we will share those with you. We have a series of amendments that we will share with the Committee in considerable detail.

David Hanson: I may have seen them before.

Gavin Grant:  For example, at the moment the Bill suggests that whether the courts should examine the circumstances of such an incident should be a matter of discretion. We feel that that is inappropriate; it should be a mandatory requirement upon the courts.
In most circumstances, however, we feel that court would not be appropriate, but if we are going to end up in court in such circumstances, let us ensure that all aspects of such an incident are examined—the dog’s previous good conduct, the responsibility of the owners and so on—rather than leaving that to be a discretionary matter.

Clarissa Baldwin:  We are very grateful to be given the opportunity to input into the guidance notes, but we are reminded that they are guidance and they are not enshrined in law. Certain things such as where the dwelling begins and ends, whether it will be just the curtilage of the house and whether a farm dog is protecting his farmer’s equipment are going to be caught up in the law. Such factors, which may go in the guidance, might well be misinterpreted by the courts if we are not very careful. We need some clarity on such things.

Q 67

David Hanson: I look forward to seeing suggestions on that.
I have two more points, the first of which relates to wider protected animals. We have had representations on potential dog attacks on horses, cats and others. Given the aggravated offence in the Bill for attacks on assistance dogs, how do we get that balance? Do you have any suggestions on that? Is that an appropriate extension of the Bill or would that not find favour with you?

Clarissa Baldwin:  It would certainly find favour with us. Dogs Trust is a single issue organisation, but we do not condone any provoked attack on any other animal. Again, clarity would be required as to how you deal with a situation where, if a dog is in his garden and a cat comes into his territory, the dog goes after the cat. Again, I would stress that we do not condone any provoked attack on any other animal.

Gavin Grant:  We are very sympathetic to the argument made by Hearing Dogs and by the Guide Dogs for the Blind Association and so on as to the implications of these attacks, not only for these extraordinary animals, but for their owners. We recognise that the aggravated nature should perhaps apply only in those circumstances, but the protection of the law also ought to apply. Many of us—far too many of my 400 inspectors—have had to deal with farmers and vulnerable people for whom their other animals are fundamental to their lives and, indeed, to the commercial activities that they undertake in a responsible manner.
As Clarissa rightly said in summarising all of the endless legislation that exists, there are different provisions in different places. Here is an opportunity to consolidate some of those provisions and to gain greater protection for animals, while recognising specifically, in the aggravated nature of the offence, the circumstances of particularly vulnerable people who rely upon their dogs to exist in a meaningful way in our society.

Q 68

David Hanson: My final question. We heard evidence this morning from ACPO with regard to the level of sentence for an offence that has led to, in many cases, the manslaughter and death of an individual in the home. The current sentence is for a period of two years. Have you formed a judgment as to whether that sentence is appropriate in circumstances where an individual has been killed by a dog, albeit not deliberately?

Gavin Grant:  I will always bow to the experience of our colleagues in ACPO, who have worked closely with the coalition that presented the original consolidated proposed Bill that the Government felt minded not to take up. I observe that there are many offences connected with dogs—dog fighting, badger baiting and other heinous crimes—where the sanction of the law is, frankly, totally inappropriate: it sits at six months.
One may well feel that actions that have led to the death of a human being are inappropriately sanctioned at two years. We feel very strongly that actions that are deliberate and malicious against our fellow creatures are wholly inadequately sanctioned as the law stands currently.

Clarissa Baldwin:  There is no excuse for a dog to be out of control and no excuse for a dog to kill a person. A custodial sentence, however strong the courts might decide, would be appropriate.

Q 69

David Hanson: Given the strong support you have offered to some of the suggestions that are around, do you have any assessment as to why the Government have not done this?

Gavin Grant:  “This” being what?

Q 70

David Hanson: “This” being any suggestions on dog control notices and/or other measures. What is your assessment of why that is not in the Bill?

Gavin Grant:  It is a very interesting question, but I suspect it should be directed more at Mr Browne. There is an opportunity here that goes across the political divide. Matters of animal welfare should not be partisan. Animal welfare unites all of us who have any role in the enforcement of the current laws, or experiences of what happens when irresponsible owners meet powerful dogs and the disaster that results.
Perhaps it is the 59th minute of the 11th hour, but I plead again with the Government to reflect on this issue. In 1991, this House got it fundamentally wrong. A piece of legislation was passed with the best of intent that simply failed to deal with the dog attacks that had occurred in that summer and the previous one. It attempted to prevent certain breeds of animal—ill defined—coming into this land. That was the intent of the 1991 Act and, as I have said, I had the privilege of being with the Home Secretary at the time trying to work out the best way to do this. We warned at that time that breed-specific legislation and the approach that was being taken, without a comprehensive underpinning, would singularly fail to deal with the problem. Here we are 22, 23 years later, and sadly—I hate to say it—our words have been proven correct.

Q 71

Tracey Crouch: I was going to ask both of you whether you thought this was the right Bill to be updating and amending legislation. I think it is pretty clear from your answers thus far that you do not, so let me ask you a slightly different question. Would you rather that these clauses were removed and that you then wait for future legislation? It could take a significant time to deal with some of the issues that you raise elsewhere about dogs.

Clarissa Baldwin:  From our point of view, the answer would be yes. It would be appropriate to wait, because so far the Dangerous Dogs Act has not worked, as Gavin has said. The Bill is a bit of a mishmash. Enforcers are going to find it very difficult to know where to go to fulfil their obligations under the law when it is in so many different places.

Gavin Grant:  Similarly, I share Clarissa’s desire—I think we all do—for that comprehensive piece of legislation. I note, with interest and a degree of concern, that, while there is a massive consensus in this House and across practically every organisation you could care to name on how to deal with circus animals, I believe that there are something like 27 wild animals in travelling circuses in this country, and it seems to be taking an inordinate length of time to be enacted as a Bill in the House. We might finally get there. I fear that we could spend an inordinate amount of time waiting for that glorious day when the consolidated dogs Act appears before us. We could drop the provisions, but some of the amendments that we collectively suggest may at least help to enhance the situation. We share the concern that how the dog notices in Scotland are being enacted is over-bureaucratic, but we know from the RSPCA’s experience and from that of other local authorities that are working in this area that dog control notices, when used effectively, have a good impact as a deterrent and on correcting inappropriate behaviours. The provisions in the Bill could lead to serious unintended consequences.

Q 72

Tracey Crouch: So if you do not get your wish, and the clauses go ahead as are currently drafted, do they provide a sufficient defence for responsible dog owners?

Clarissa Baldwin:  Until we know what will go in the guidance and just how much will be enshrined in law, it will be difficult for some good dog owners to know exactly where they fail or where they are compliant with the law, particularly with other animals coming into the territory or burglars coming on to their land. At the moment, we are in limbo in not knowing what the intention is with the detail of the Bill.

Gavin Grant:  Thank you for the question and, if I may, I will make a serious point. There is huge concern from all of us who have to pick up the pieces of irresponsible ownership. Sadly, the number of dogs involved in that is growing by the day. Certain breeds and types of dog have been thoroughly demonised in this country. I had the privilege of owning a rescue cross-Staffordshire bull terrier at the time of the Dangerous Dogs Act and I also had two very young children. My then wife was a veterinary surgeon with the People’s Dispensary for Sick Animals, and there was not a way in the world that we would have put our very young children at risk with that animal. He was an absolute delight to own, and it may amuse one or two Members with long memory of the House to know that I called him Pardoe after a particular individual who served with some distinction in the House and had a high level of energy, but did not seem to achieve very much in his time here.
My concern is that it is now very difficult to re-home cross-Staffordshire bull terriers or bull terriers, and the effect of some of the legislation has been to demonise dogs. My fear about part of the Bill is that we are in grave danger of persuading responsible people who care passionately about dogs that they may inadvertently get themselves into difficulties not of their making. I return to the point about elements that seem to be reflected in the Bill and the nature of the individual who suffers their own fear of a dog when their own behaviour may have enhanced the way the dog behaves towards them. That is nothing to do with irresponsible ownership, and certain elements of the Bill are leading us into dangerous territory where we may move from demonising dogs to demonising dog owners.

Q 73

Sarah Champion: I hear everything you are saying but we are where we are. To go back to an earlier point, Cats Protection circulated their evidence to us and said:
“The current law is proving ineffective in its stated aims of preventing harm, injury and death to cats and other protected animals.”
Do you think this Bill will do anything to address that, or what specific amendments should be made so that it covers other protected animals?

Gavin Grant:  No, I do not think it will, and I am afraid that it is a known phenomenon of certain individuals who come and say they want to adopt a rescue cat that if you probe them a little harder and firmer it emerges that they want to use it as a training device for fighting dogs, for example. We have experienced that, as have others. Cats Protection, which is a close collegiate organisation with us, knows exactly the same phenomenon.
We need to give greater enhancement to the protection of other protected animals, and there is an opportunity through amendment of the Bill—it is one of the amendments we will propose to you collectively—to do precisely that. As it stands at the moment, I do not believe it does.

Q 74

Stephen Phillips: I want to follow up on Ms Crouch’s questions. We probably all agree that we should not make the perfect the enemy of the good, so the question in the minds of some members of the Committee will be whether there is enough good in the Bill that these provisions should remain in it, given the risk of delay in waiting for consolidated legislation to be forthcoming from DEFRA to deal with the entire issue. I want to press you for a straight answer. Ms Baldwin gave a straight answer to the question: do you think these provisions should come out of the Bill? That surprised me but you, Mr Grant, were much more equivocal.

Gavin Grant:  I am not known for equivocation, so let me try to be clear. I apologise if that is the impression I gave. Significant amendments could be made to the Bill to enhance its usefulness, both by way of human society and in support of responsible dog ownership. Dog control notices are an example I have already given, and there are a number that could be made that would enhance the Bill.

Q 75

Stephen Phillips: Let us leave those to one side. Is there enough that is good in the Bill in its current form to make it worth while for the Committee to send part 7 back to the House as part of the Bill, or should we simply remove it?

Gavin Grant:  I think there is enough in here that is good if there are suitable and appropriate amendments.

Q 76

Stephen Phillips: That is fine. That is a suitable qualification. Ms Baldwin, do you want to add anything?

Clarissa Baldwin:  I absolutely take what Gavin says. One doesn’t want to lose anything that will be for the good. At this stage, we are just not quite clear what the intention is and about a number of things I have just mentioned. With reservations and if we had dog control notices, for which we have all lobbied for a very long time, there are provisions that are acceptable but we would like a little more clarity about what is intended.

Q 77

Stephen Phillips: If this is the only choice we have, would you be happy for us to send it back to the House with part 7 as part of the Bill?

Clarissa Baldwin:  You are pushing me. I suppose so, but with great reservation.

Jim Dobbin: I thank both our witnesses for coming along this afternoon and giving us the benefit of their expertise.

Examination of Witnesses

Jeremy Browne and the right hon. Damian Green gave evidence.

Jim Dobbin: We now come to the last session of the day. We will give our tired Ministers the opportunity to sit down in peace and quiet and listen to a very exhausted panel. We have been sitting here all day.

Q 78

David Hanson: I am sure my two ministerial colleagues will be grateful to know that we do not intend to ask too many questions, because we will have a lot of opportunity during the Committee to test Ministers on the provisions. What I want to do is touch on two or three issues that have not been raised in the evidence session to test whether we need to examine them in more detail in the Committee. I will start with clause 133, which will make changes on low-value shoplifting. My first question to the Ministers is, what consultation was undertaken on those proposals?

Damian Green:  There is ongoing consultation with the entire criminal justice system—the police and the rest of the criminal justice system. One of the things we are most keen to do is to reduce the delays in bureaucracy that make it harder for police officers to do the job we all want them to do. We know that shoplifting imposes significant costs on communities and the shops themselves. There are more than 80,000 cases of shoplifting before the courts every year. The purpose behind the changes is to make sure that those cases are dealt with as fast and as proportionately as possible.
Shoplifters are often prolific offenders; it is a crime that is often used to fuel drug habits and things such as that. The changes will allow certain cases of shop theft to be dealt with as summary only, which will improve proportionality and lay the ground for the police to prosecute uncontested cases in the future. In terms of consultation, it is something that the police are keen on, and the criminal justice system as a whole thinks that this will speed up the process.

Q 79

David Hanson: Why have I received representations, as has every member of the Committee, from the Association of Convenience Stores and many other retailers? Last week, I met with Co-op, Morrisons and Sainsbury’s. I quote from the Association of Convenience Stores, which said, “The business community was not informed of the changes to the Bill, even though shop theft accounts for almost half of all crime against the business community.” Should we be at least consulting with those people who are having property stolen from them?

Damian Green:There may genuinely be a misunderstanding that these changes in some way downgrade the importance of shoplifting as a crime. Actually, the purpose of these changes is to ensure that those who commit this crime, who, as I said, are frequently prolific and repeat offenders, can be dealt with faster and proportionately by the court system, so they are in less of a position to carry on repeating the crime. On that basis, I would hope that, when looked at carefully, the retail sector will be the biggest beneficiary of the changes and will therefore come to welcome them.

Q 80

David Hanson: On page 71 of the explanatory notes, it says that the changes will enable
“defendants in summary cases to be given the opportunity to plead guilty by post.”
Exactly how many guilty pleas for shoplifting does the Minister expect to be submitted by post annually, as opposed to the defendant appearing in court?

Damian Green:  I am not sure that I can give an exact figure for that. The police have always been able to prosecute some low-level traffic offences where the defendant pleads guilty by post.

Q 81

David Hanson: Are traffic offences comparable with shoplifting offences?

Damian Green:  No. If I could finish, as a piece of system management, we have looked at more serious offences. Traffic offences are serious as well, but, as I say, shoplifting is serious offence. It is particularly beneficial to the victims of shoplifting if we can speed up the court process, because in the past, one has too often seen a shoplifter who is feeding a drug habit and is caught, but it may take months and months for the case to be heard. During those months, the addict is likely to continue with their drug habit, and therefore to continue to try to feed it by committing crime. The measure will actually prove a very effective way of reducing the incidence of shoplifting.

Q 82

David Hanson: On what basis was the £200 threshold figure selected?

Damian Green:  A large proportion of shoplifting offences involve property worth under £200—I think it is 90%. The median value of goods stolen is £40, so the vast bulk of shoplifting will come under the conditions set out in this part of the Bill.

Q 83

David Hanson: I am interested because I may or may not table amendments to the clause. Will the Minister give a commitment to the Committee to consult the retail community prior to the consideration of these clauses? It is important that they have an opportunity to put their views to Ministers.

Damian Green:  Obviously, we talk to victims of crime all the time, as well as the law enforcement agencies, and I am absolutely happy to do that at any time.

Q 84

David Hanson: In general terms, during the passage of the Bill, can we expect to see any new clauses tabled by Ministers on any issue that is not yet covered by it?

Mr Browne:  Possibly.

Q 85

David Hanson: “Possibly” is an interesting answer. It is important. In the Crime and Courts Bill Committee, several very large clauses were tabled very late in proceedings, which gave both outside bodies and members of the Committee little time to scrutinise them. I am therefore simply giving you an opportunity to say, in principle, whether you are going to add any topics to the Bill in new clauses. If so, will you indicate what they might be so that we can discuss them, or at least so that outside bodies can do some preparation for their representations? In the Crime and Courts Bill Committee, in some cases we had only one week’s notice of major clauses.

Mr Browne:  In my experience, I do not think that any Minister would give a categoric assurance at this stage of the Bill process that the Government will in no circumstances introduce any new clauses. We have a full Bill with lots of provisions. It is not a work in progress, but there may be circumstances in which we feel the legislation is enhanced or the public better protected by introducing new measures. If that is the case, we will obviously consult the Committee, or the House more generally, and try to ensure that the legislative process runs its course and that any provisions are examined in as thorough a way as possible. However, I cannot promise that we will not introduce any more clauses, any more than I suspect other members of the Committee would want to give that assurance.

Q 86

David Hanson: We have heard some strong evidence today on dangerous dogs from the Association of Chief Police Officers, the RSPCA and others. Has any of that given the Government pause for thought in relation to potential amendments on those particular clauses, or are they still minded not to pursue the paths that were well trodden in the discussions that took place before the Bill was introduced?

Mr Browne:  We have had a number of representations, and I have been here and heard them all. My point expands on the point that was made by Mr Phillips in the previous session, which is that, in all legislation, we can find people who believe that there should be even more added to it. The question is: do people like what is in the legislation, or would they rather not have it? We are spending quite a lot of time talking about what is not in the Bill, perhaps to the detriment of talking about what is in it.
It seems to me that the key provision in the Bill is about extending the protection from just the public realm to the public and private realms, which is sensible given that there have been a number of extremely high profile and harrowing cases in which children in particular, but not exclusively, have been attacked by violent dogs in private spaces. The other measure that has received quite a lot of attention is the aggravated offence of an attack on an assistance dog. Both seem to be good measures.
I do not doubt that the Department for Environment, Food and Rural Affairs or people who take a particular interest in matters relating to dogs or animals more generally could find lots of other areas to do with dogs on which they might at some point in the future like to legislate. They may see this as an opportunity to lobby on that agenda, but this is not a catch-all Bill about dogs. This is an opportunity to introduce those and other associated measures that are beneficial to protect public safety.
In terms of the dog control notice, which is not in the Bill, but has been lobbied on most powerfully, it remains our position that the antisocial behaviour provisions in the Bill cover all of what the people who are in favour of dog control notices would like to see in it.
The Control of Dogs (Scotland) Act 2010, which is often held up as an example that people would like us to follow when they lobby for a dog control notice, has a series of provisions about muzzling dogs, keeping dogs on a lead, neutering male dogs and so on. All those requirements and more are available to the authorities using the antisocial behaviour provisions in the Bill. It remains our position that what is in the Bill is valuable and that what is not in the Bill is not necessary in that regard.

David Hanson: We shall have some debate on that in Committee. ACPO was clear this morning that the guidance did not meet the objectives, but that is a matter for debate as opposed to cross-examination. I shall allow other colleagues to participate.

Q 87

Tracey Crouch: My first question was going to be: what on earth is part 7 doing in the Bill? I just wondered whether you could explain that.

Mr Browne:This is primarily an antisocial behaviour Bill, but it will not be an unfamiliar experience to members of the Committee to see a Home Office Bill with a range of different provisions, because the nature of the Home Office as a Department is that we are legislating the whole time as threats to the public evolve, and we cannot necessarily wait for a slot in the legislative order for a discrete Bill that deals with every single area of public concern because we could wait a very long time.
The particular point has been brought to our attention—it is a DEFRA lead, but this was seen as a suitable vehicle for legislation—that the threat to the public from dangerous dogs in the private realm is serious and, in some cases, very considerable, and this is an opportunity for us to address it.
I suppose the question in reverse is that the Government would be open to the charge of negligence if we had an opportunity to do something about that threat in this Bill but said that we would rather not do so, instead waiting several years before addressing it in some other legislation that has, as yet, not been written.

Q 88

Tracey Crouch: But it is pretty well recognised by the Home Office that the Dangerous Dogs Act 1991 was a disaster. Is this not a case of further exacerbating the problems that have come out of that legislation?

Mr Browne:  It is one of the great truisms in politics that that Act was disastrous—keen historians of parliamentary procedure can have that debate—and it was amended in 1997 or 1998. There has been some controversy about the merits of the changes made at that stage, too. It is for us to discuss in Committee whether the new clauses are disastrous. I happen to think that they are modest in their scope but important in their impact. If my constituent’s granddaughter or daughter had been mauled in her buggy by, say, the grandparent’s dog while visiting the house, there would be no provision at all. Had the incident been in a public park, it would have been caught within the scope of legislation, but because it happened in the front room there is no legal provision to do anything. If my constituent asked what I was going to do to address that, I would feel that being able to hold up this Bill and say that we are addressing the concern is a good response. To say, “Well, actually, we did have an opportunity to legislate, but we thought that we would wait until we had an opportunity to bring in an all-singing, all-dancing dogs Bill several years down the track,” is an answer that my constituent would like less.

Q 89

Tracey Crouch: I shall leave dogs there. You are quite right that we will have more debate on that in Committee.
Do you think the measures in part 1 protect young victims of crime?

Mr Browne:  Young victims or perpetrators?

Tracey Crouch: Victims.

Mr Browne:  I understand your point. The intention is to protect people of all ages, because people of all ages can be victims of crime. The widespread perception that older people tend to be victims of crime is inaccurate. By and large, young people are more often perpetrators of crime, and they are more often the victims of crime, too. Our hope is that people will be protected regardless of their age.

Q 90

Simon Danczuk: I want to start by asking how the Bill came about. Mr Green, on 9 June 2010 you said:
“The hon. Member for Walsall North (Mr Winnick) made the good point that all the major parties in the House have a spectrum, with some at the authoritarian end and others at the civil liberties end. I can assure him that the civil libertarian end is now in the ascendance in the Conservative party”.—[Official Report, 9 June 2010; Vol. 511, c. 433.]
Leading up to where we are on the Bill, it could be suggested that, having got into the proverbial bed with the Liberal Democrats, you have decided to shift position to where you are now formulating policy, which places greater emphasis on protecting the perpetrator and less emphasis on defending the victim. Is that not the case?

Damian Green:  No, that is complete nonsense. I said what I said, which I assume was in the context of a debate on the Identity Documents Bill. I was proud to take that Bill to the House as it abolished the identity cards system that the previous Government wanted to foist expensively on the British people. There is a clear distinction to be drawn between people who put themselves at risk of losing some of their civil liberties as a result of committing a crime and the great mass of the population, who deserve to have their civil liberties protected. As with other Bills introduced under the Government, this Bill draws that distinction very clearly. Those who commit crimes or antisocial behaviour deserve to be caught, prosecuted and then punished if convicted. People who make the choice to commit crime should face the consequences, but I am as staunch as I ever have been about protecting the civil liberties of the respectable vast majority of the British people.

Q 91

Simon Danczuk: In July 2010, the Home Secretary said she wanted officers to be able to use their common sense to deal with antisocial behaviour, with punishments being
“rehabilitating and restorative, rather than criminalising”.
Why are you so worried about criminalising criminals, Minister?

Damian Green:  We are not worried about criminalising criminals: criminals criminalise themselves—we will be entering Donald Rumsfeld territory if we are not careful. The point the Home Secretary was making was about the use of out of court disposals, restorative justice and other such measures. That is extremely important: one of the things we all want the criminal justice system to do is to minimise reoffending. We are for ever searching—all Governments are—for ways to make the criminal justice system not just faster but more effective. Both the range of offences and the changes to the system on antisocial behaviour brought about in the Bill will help to achieve that. Simplifying the range of different measures will make it much clearer for law enforcement people, and in the end it will perhaps send a clearer message to those who would commit crime or antisocial behaviour that they will not be faced with some of the sadly ineffective measures that were introduced in the past.

Q 92

Simon Danczuk: But the breach of a new order is not a criminal offence, is it?

Damian Green:  It is not a criminal act.

Mr Browne:  Just as a broad observation, I do not think that we in Parliament should feel ashamed, Mr Danczuk, about protecting the basic freedoms of our fellow citizens. When people have not committed a criminal offence, it is a rather different matter to criminalise them than when they have committed a criminal offence, in our view.

Q 93

Simon Danczuk: Breaching an ASBO could lead to a criminal offence, could it not? You are watering down the opportunity to address some of the concerns that ordinary residents have when their lives are being made a misery through something that you might call nuisance, but that I would call something stronger.

Mr Browne:  I have had the opportunity, as have you, to sit through the hours and hours of evidence that we have heard, both on Tuesday and today, and I was struck by what Chief Constable Sara Thornton said this morning when she was sitting where I am now. She said that she thought that the replacement of the ASBO by the new injunction was to be welcomed. I have had that response from a number of practitioners, to use the jargon—people in law enforcement in various guises. They feel that consolidation of the powers available to them—decluttering, as Tony Lloyd described it in the same evidence session—and the ability to use those powers more swiftly and efficiently on behalf of the public are to be welcomed.
In my constituency—I am sure this is true for all of us—when people are asked, without prompting, what concerns them, probably the biggest single issue they raise with me is antisocial behaviour by their neighbours. However, that does quite often fall short of criminal activity. It is things such as playing music late at night or ringing a disabled person’s door bell, knowing that it is difficult for them to get to the door, and then running off by the time they get there. It is hard to criminalise that sort of activity, but it can have a cumulative detrimental impact on the quality of life of people in the communities that we serve. We are trying to fill that area, and to give greater protection to victims in such circumstances while recognising the nature of the offences and ensuring that the powers and penalties are proportionate.

Q 94

Simon Danczuk: Going back to earlier evidence, in particular from Victim Support, which has a real problem with the community trigger, would you be prepared to look again at the idea that something has to be reported three times? Would you be prepared to consider amending the legislation around the community trigger?

Mr Browne:  This part of our discussion has been one of the more interesting parts, if only because it has shown how many inaccurate perceptions exist and how much work we need to do to enable people to understand better the Government’s proposals. At the moment, there is no back-stop, and this is not a weakening. Currently, a person could complain to their council 20 times. They could complain every Monday morning about antisocial behaviour and feel that there was no interest in their complaint or no action was taken. We have put in place a safety net, but the test of a safety net is not necessarily how many times you fall off the tightrope. Ideally, you do not fall off the tightrope.
One criticism, which I simply did not understand, was made on Second Reading by the shadow Home Secretary when she said that the trigger cannot be very effective because it was not used many times in the trial areas. One could argue that it has been very effective, because the authorities saw it as necessary to act before it got to the point when the trigger triggered. Three is the furthest back that the back-stop can be set. For example, in one pilot area, Brighton and Hove, the trigger was one incident where no response had been made within a week of its reporting. The three is a maximum. It is not a target. If your council wants the trigger to be two or wants a shorter time scale, such as three months—it is three calls and six months at the moment—it would be perfectly entitled to do that. If we found, however, that the trigger was never triggered in your area, because the response of the agencies was so prompt and effective, we would not regard that as a failure. It might have been a helpful stimulus to their being more effective on behalf of the public they serve.

Q 95

Stephen Phillips: Minister Green, you propose giving the College of Policing significant powers and responsibilities, but I think I am right in saying that the College of Policing is currently a company limited by guarantee. Why are you not putting it on a statutory footing?

Damian Green:  Why are we putting it on a statutory footing?

Stephen Phillips: Why are you not putting the College of Policing on a statutory footing?

Damian Green:  We are putting its powers and responsibilities in statute, by definition. We are currently considering the most appropriate way of incorporating it in the longer term, but the college is already up and running and doing useful work.

Q 96

Stephen Phillips: Is it really appropriate to give these sorts of powers and responsibilities to a body that is a private company limited by guarantee as opposed to giving it corporate personality as a statutory entity in this legislation?

Damian Green:  I think it is, because, as I was saying, the best thing about the College of Policing is the work that it is going to do and the work that it is already doing. We therefore decided that we did not want to wait until the eventual decision on how it should be incorporated came about, because that would delay the work that we want it to do. It is a perfectly sensible arrangement to have that company with the Home Secretary as the shareholder. It allowed the company to be set up and to start work and we are already seeing the beneficial effects. A delay would have been damaging and that is what we are avoiding.

Q 97

Stephen Phillips: But it would not be a delay, would it? It needs one line or one clause in the Bill simply to say that there should be a body corporate called the College of Policing. That is all it needs.

Damian Green:  You then need to define what sort of body corporate it would be.

Stephen Phillips: No, you do not.

Damian Green:  It is already there; it is a company limited by guarantee. That is a corporate body.

Q 98

Stephen Phillips: We obviously cannot take that one any further. Who is answering the DEFRA questions, given that there is no DEFRA Minister?

Mr Browne:  Dogs? I am dogs.

Q 99

Stephen Phillips: No comment. At the moment, as I understand it—I have to say that I had not appreciated this—if a dangerous, out-of-control dog kills a baby, the maximum custodial sentence that a court could impose is two years. Do the Government really think that is appropriate?

Mr Browne:  You are right that some primarily DEFRA responsibilities have been grafted on to the Bill.

Q 100

Stephen Phillips: But you are answering, Mr Browne.

Mr Browne:  I am, and I am about to do so. There is a package of measures about animals, animal welfare and the sentences attracted by criminal offences with regard to animals, of which this provision is a subset. I suppose that if one wanted to look at what penalties are appropriate, it would make sense to consider the full portfolio of them, rather than one in isolation.
For what it is worth, my view is that it struck me, as it struck you, that two years is a low sentence, but the Bill will strengthen the provisions by including in its scope both the private and public realms, rather than just the public one. The Bill is not concerned with the length of sentence. Before the legislation was introduced—during your first three years and my first eight years as Members of Parliament—the sentence for a child being killed by a dog in a private space was zero years.

Q 101

Stephen Phillips: Merely because the sentence was completely wrong beforehand is not a reason to perpetuate the fact that it is still wrong.

Mr Browne:  You may think it is wrong and, as a legislator, you have an opportunity to address that. My point is that the Bill concerns not the sentence, but what is and is not an offence. At the moment, a dangerously out-of-control dog attacking somebody in a private space is not an offence and does not incur any penalty. We are widening the scope of the offence, rather than looking at whether the penalty for breaching the existing offences, or the new extended offence, is excessive or inadequate.

Q 102

Stephen Phillips: I am sorry, Minister Browne, but that is absolutely hopeless. Part 7 of the Bill will amend the Dangerous Dogs Act, which contains provisions on what constitutes an offence and what the maximum sentence is when that offence is committed. The Bill amends the Dangerous Dogs Act, so—this is right, is it not?—there is no reason at all why that sentence could not be changed by amending that Act.

Mr Browne:  I reiterate the point—I am saddened that you find it hopeless; it is hugely important—that if any Committee member’s baby is attacked in a park, the dog owner who failed to prevent that attack has committed an offence and could go to prison as a result, whereas if their baby is attacked in a private space, in their own home, no offence has been committed. That point was brought to our attention via DEFRA, and it is addressed by the Bill. It is also legitimate to debate how serious we consider that offence, or the existing offence had the attack taken place in a park or on the street, but that is different from the debate about whether the provision should count as much in a private space as it does in the public space, which is the concern addressed by the Bill.

Q 103

Stephen Phillips: I welcome that and it is great, but nothing whatsoever need stop the Government, through this Bill, looking again at the appropriateness of the sentence for an offence of having an out-of-control, dangerous dog in either the public space or a private space.

Mr Browne:  Some parts of the Bill—on which Mr Green is leading, not me—are about the sentences attracted in relation to firearms. Of course Parliament is able to look at minimum sentences. That is the nature of being a parliamentarian: we are able to amend and propose legislation. But it is worth noting that we are introducing an offence where previously there was no penalty at all. That is quite a substantive point.

Stephen Phillips: We have all got that point. You have made it four times.
On clause 93, in part 6, why is there no provision on the contents of a community remedy document? Do the Government not think—it seems to me to be obvious—that the Bill should contain such provision?

Mr Browne:  I was reflecting on that point earlier, but I am not sure it is as obvious to me as it is to you. I suppose it depends on whether you think wisdom resides in central Government, and that people in individual police force areas are unlikely to have wise ideas that exceed those in the Home Office, or whether you think that giving people the ability to use their innovation and experiences may liberate them to come up with ideas that may even have escaped the attention of the Home Office. I am by instinct not as prescriptive as you appear to be. I think there will be guidance available, but just because a metropolitan elite in London think they know what is best for people in Lincolnshire does not necessarily mean that people in Lincolnshire agree that the metropolitan elite in London know what is best for them.

Q 104

Stephen Phillips: I will ignore that very unsubtle dig. I agree that prescription is not the way forward, but you surely need to set some boundaries around what is and is not lawful. You obviously have not yet had the opportunity to look at the amendments that I tabled and were printed yesterday, which I will be moving in due course, but I strongly urge you to do so.

Mr Browne:  We had three police and crime commissioners here this morning—all elected by a bigger electorate than any of us have put ourselves before. One was from the Labour party, one from the Conservative party and one was an independent. They were all prompted to say whether they were going to put in place a range of punishments—if I can put it in those terms—that would injure the sensibilities of sophisticated people like us. Interestingly, none of them fell for the bait. They all struck me as very measured, proportionate, sensible people who did not need to be micro-managed by Home Office Ministers.

Q 105

Stephen Phillips: But every single one of them agreed that they wanted guidance in the Bill about what should and should not be considered appropriate action.

Mr Browne:  And we could issue some guidance. The independent PCC said that he had spoken to other independent PCCs, including, I assume, the independent PCC in my police force area in Avon and Somerset, and they were likely to share ideas and best practice. I am not saying that everyone should operate in isolation, but sometimes 43 heads can be better than one and we should not assume that we know all the answers. The whole purpose of the PCC model, which some people around the table will have voted for, is to try to give people serving the public in their police force area the ability to be innovative and to think of measures that will be tailor-made to the population they serve and will be effective in that area. What works well in Cornwall may not necessarily work well in Newcastle. Rather than have a one size fits all, top-down “we know best in Whitehall” approach—though there is some merit in having guidance—I would give people discretion to be flexible and innovative. My personal view is that that is probably true in other parts of the public sector as well.

Stephen Phillips: Thank you. I look forward to debating what is already a good Bill, and trying to improve it.

Q 106

Gloria De Piero: I have a couple of questions. Some 40% of people who breach an ASBO end up in prison. Do you want to see that number come down?

Mr Browne:  I want antisocial behaviour to come down and I would like fewer people to breach measures put in place to try to prevent antisocial behaviour. A breach is a failure, obviously, and we do not want people’s lives to continue to be blighted by antisocial behaviour.

Q 107

Gloria De Piero: Sure. The National Audit Office report in 2006 said that 65% of people who had had an intervention did not reoffend, but there was a hard core that continued. That is why we would argue that it is important to have that criminal sanction, because 40% of those people ended up in prison. Am I correct in thinking that you would like to see, as a proportion, fewer people go down for breach of an injunction to prevent nuisance and annoyance than did for an ASBO?

Mr Browne:  When I was putting questions to the witnesses from Liberty about an hour or so ago, one of the points I was keen to bring to their attention was that I think it is necessary to have sanctions in place to underpin all these provisions, because otherwise they are toothless. I have done a number of radio interviews and other appearances where the criticism has been levelled at me that these provisions are unduly draconian. The point has been made that for over-18s, breaching an injunction could lead to as much as two years in prison.
There is a balance to be struck. Some people wish the legislation to be more draconian and some wish it to be less so, but we feel that these are serious measures and, if breached, they are underpinned with appropriate levels of sanctions.

Q 108

Gloria De Piero: I did not quite go on to that, but if that is how you want to answer the question, that is fine.
Finally, we have had lots of evidence over this week; some of it was supportive and some of it was constructive criticism. Has anyone, or more than one person, made a point that you thought was really good and made you have another think about something?

Mr Browne:  I am constantly interested in the points that people make in Parliament.

Gloria De Piero: Nothing particularly stood out?

Mr Browne:  My personal view is that I think the people who make the most informed and interesting points are often Members of Parliament, so I am looking forward to getting down to the clause by clause scrutiny and hearing all the interesting points that will be made. I am a bit of traditionalist. I quite like the old-fashioned method of scrutiny, but a lot of our witnesses have made interesting points, and I have agreed with some but less with others.

Gloria De Piero: We are looking forward to the next month, too.

Jim Dobbin: Thank you.

Ordered, That further consideration be now adjourned. —(Mr Syms.)

Adjourned till Tuesday 25 June at five minutes to Nine o’clock.
 Written evidence reported to the House
ASB 08 Cats Protection
ASB 09 Baroness Newlove of Warrington
ASB 10 Criminal Justice Alliance
ASB 11 Communication Workers Union